"They don't have to exercise it, but I'm not so sure that they want the authority removed to arrest or to capture, because we're talking about war here — somebody who’s declared war against the United States, just because we capture them on U.S. soil," Levin said.

"We can hold them on U.S. soil, but I don't think we want to eliminate the authority of the Executive Branch to hold someone who’s declared war on the United States as an enemy combatant," he said.

Left unexplained is why mandatory military detention is needed at all. Umar Abdulmutallab, who inspired the mandatory military custody provision after he set himself on fire trying to blow up a plane, would not have been granted bail in a federal court. If the evidence is that strong that someone is a terrorist, there's no need to put them in military custody. Levin fails to offer even a single argument for why military custody would be preferable to civilian custody. Instead, his argument is a moral one: We're at war with these people, so we'll treat them like warriors.

In Levin's preferred world, the part of the process where the government proves that suspected terrorists are who the government says they are is no longer a necessary prerequisite to locking them up for the rest of their lives. But this isn't the Civil War, and Union and Confederate soldiers aren't lining up in uniform to fire rifles and cannons across corpse littered battlefields. The reason why due process is so crucial is that identifying who actually is a terrorist isn't a simple matter—but it's also not as though the process is taking place amidst the chaos of an active theater of military combat.

The new defense bill is scheduled for a vote in the House on Thursday, but even if Smith and Amash get their proposal through the lower chamber, there's a bipartisan group of Senators who want to protect the president's authority to imprison American citizens without proving they're guilty of anything at all. Barack Obama, for his part, hasn't weighed in on either side—but given that the president has promised never to attempt to use this power, it's a mystery why he wouldn't vocally oppose it. If Obama and his advisers believe this kind of indefinite detention is an anathema to due process, why not support a bipartisan effort to ensure that Americans' constitutional rights aren't dependent on the whim of whichever president is in office?

At least the battle lines here are clearly drawn in a way they weren't over last year's defense bill. One group of legislators thinks Americans can be deprived of their liberty in their own home country without a trial. The other thinks the government has to actually prove you're guilty of something first.

Game of Thrones author George R.R. Martin started his A Song of Ice And Fire series in 1996, and it isn't anywhere close to finished. Some fans are so obsessed with the series, however, that they've taken to constantly berating him for working on other projects instead. Some fans openly worry Martin, like fellow fantasy author Robert Jordan, will die before finishing his flagship series. In a recent blog post, Martin mocks his trolls:

Reading. I just finished THE KING'S BLOOD, the second volume of Daniel Abraham's "Dagger and Coin" series. Books like this remind me why I love epic fantasy. Yes, I'm prejudiced, Daniel is a friend and sometime collaborator... but damn, that was a good book. Great world, great characters, thoroughly engrossing story. The only problem was, it ended too soon. I want more. I want to know what happens to Cithrin, and Marcus, and Geder, and Clara. And I want to know NOW. God damn you, Daniel Abraham. I know for a fact that you are writing more Expanse books with Ty, and more urban fantasies as M.L.N. Hanover, and doing short stories for some hack anthologist, and scripting some goddamn COMIC BOOK, and even sleeping with your wife and playing with your daughter. STOP ALL THAT AT ONCE, and get to writing on the next Dagger and Coin. I refuse to wait.

With all 18 precincts reporting at 9:30 p.m., [Kenyan] McDuffie took 44.50 percent of the vote. Second-place finisher Delano Hunter only mustered 20 percent, while Frank Wilds took 14.8 percent. Republican contender Tim Day, the man responsible for the investigation that eventually brought down Thomas, only managed 5.3 percent of the vote.

McDuffie wasn't a bad candidate by any means, but Day's poor showing speaks to an ongoing structural problem caused by the city's lack of congressional representation. DC's local shenanigans occasionally prompt critics to argue that the city doesn't deserve representation in Congress, despite having a larger population than Wyoming, which has two Senators and a congressional representative. This gets things exactly backwards: The lack of congressional representation places a ceiling on political ambitions that reduces the incentive for local politicians to behave. DC's best politicians don't have a governorship, House or Senate seat to look forward to. It's a political cul-de-sac. As Jonathan Bernstein pointed out Tuesday night, DC's lack of representation also means Republicans have little reason to invest in a stronger local party whose partisanship might also serve as a check on local corruption. There's also the weirdness of having national parties contest local elections, which makes little sense in the context of local DC politics and burdens candidates like Day who don't have much in common with, say, Senator Jim DeMint (R-S.C.).

Retrocession into Maryland would solve some of these problems, but as a DC partisan I favor the city's right to exist as an independent entity. Unfortunately, given that DC statehood would mean two new Democratic Senators, the constitutional changes necessary for statehood aren't ever likely to happen, despite the fact that the United States was founded to combat the injustice of taxation without representation.

Richmond prosecutor Tracy Thorne-Begland, a former Navy fighter pilot, had his nomination to a state judgeship in Virginia rejected early Tuesday morning. Democrats say it's because he's gay; Republicans say it's complicated:

"He holds himself out as being married," said Del. Robert G. Marshall (R-Prince William), who is running for U.S. Senate. Noting that gay marriage is not legal in Virginia, he said that Thorne-Begland's "life is a contradiction to the requirement of submission to the constitution."

[...]

Marshall, the Family Foundation of Virginia and others who raised concerns about Thorne-Begland's nomination said they did not object to him because he is gay, but because of his outspokenness on the subject of gay rights.

Thorne-Begland also supported the repeal of the military's discriminatory Don't Ask Don't Tell policy. So it's not, strictly speaking, correct to say Thorne-Begland was rejected because he was gay. He was rejected because he believes being gay entitles him to the same rights as people who aren't. If Thorne-Begland had lived a life of closeted celibacy and talked like Tony Perkins, Marshall would have thought he was qualified to serve as a judge. This is coming from a guy who tried to install a state-level DADT policy for the Virginia National Guard because "If I needed a blood transfusion and the guy next to me had committed sodomy 14 times in the last month, I'd be worried."

Virginia Republicans didn't reject Thorne-Begland because he's gay, but because he supports gay rights. The closet magically eliminates sexually transmitted diseases, which are never contracted by heterosexuals. Some voters in Virginia apparently find this kind of logic compelling enough to keep Marshall in office.

Last year the Obama administration secretly imprisoned Ahmed Abdulkadir Warsame, an alleged member of the Somali militant group Al Shabab, on an aircraft carrier and interrogated him for two months before bringing him to the US and indicting him. No one was very happy about that decision. It made Republicans in Congress mad because they want Obama to add more prisoners to Gitmo and keep Muslims accused of terrorism out of civilian courts, and it frustrated civil libertarians and human rights groups who argued the administration had detained Warsame illegally.

Republicans, worried that Obama might prosecute more suspected terrorists in civilian court, crafted the latest defense authorization bill to ensure they're notified within five days the next time someone is detained on a Navy ship for months. The administration has threatened to veto the defense bill over that provision, saying it would "unnecessarily complicate and potentially compromise military operations and detention practices."

This is basically where civil liberties are in the Obama era: legislators are only interested in forcing detention policy to the right, and occasionally the Obama administration's desire to avoid restrictions on executive power results in more favorable (but far from ideal) outcomes for people accused of terrorism. Obama's veto threats are notoriously insincere, and preventing the administration from using the "Gitmo at Sea" option seems likely to result in more legally questionable proxy detentions of American citizens by foreign security forces with reputations for abusing those they detain.

It's not much of a choice, and it probably won't get any better if the White House changes hands in November. Republicans will lose their newfound interest in keeping an eye on whatever the executive branch is doing, and the Democrats will have largely squandered whatever credibility they have to oversee a Republican president by acquiescing to the Obama administration's continuity with much of the Bush platform on national security.

"With the global war against terrorism, it is now incumbent on Prime Minister Ariel Sharon and Palestinian Authority (PA) Chairman Yasir Arafat to clamp down on Palestinian extremists that have perpetuated violence and to restart a peace process that has collapsed," wrote Pitts in a recent, rather outdated response letter to a constituent.

Arafat has been dead for eight years and Sharon has been in a coma for six. Sadly, "dead" and "comatose" are two adjectives people might use to describe the peace process itself.

That's it for me, at least for a while. I'm on vacation for the next couple of weeks. Adam Serwer will be filling in for me here, and a few of the other MoJoers may be popping in once in a while too. I might even pop in myself, subject to my mood and the vagaries of Wi-Fi, of course.

Don't let anything important happen while I'm gone, OK? See you all in June.

On a broad bipartisan vote of 78 to 20, the Senate voted Tuesday to extend the life of the U.S. Export-Import Bank and expand its authority to make loans to U.S. exporters.

In the “Schoolhouse Rock” version of how Capitol Hill works, this is what Congress does all the time — passes legislation. But it made for big news on this Capitol Hill, where protracted partisan warfare has meant that lately the story has more often been about votes forced by one party or the other to indignantly demonstrate the other’s opposition.

Amid the gridlock, it had been nearly six weeks since the last time Congress completed this seemingly routine task.

The rest of the piece dithers about whether this means (a) garden-variety legislation isn't quite totally impossible yet, or (b) it just goes to show that big corporations can still get what they want, even if nobody else can. I'll guess (b).

From a friend of mine, reacting to the news that Mitt Romney is doing fairly well in the latest polls:

Americans have simply priced in the crazy.

I think that sums it up. At this point, conservatives can pretty much go off the rails as much as they want without paying a very big price. No matter what they do, everyone just shrugs. We're so used to it that it's hard to get people to take it seriously anymore.

Mark Kleiman points out today that support for building the Keystone XL pipeline is an article of faith on the right. However, it can only be built if TransCanada is able to acquire the land it needs to get its tar sands oil from Alberta down to the Gulf Coast:

Of course this runs into another article of the right-wing faith: that using eminent domain to seize property for private, as opposed to public, use — for economic-development projects, for example — is one short step away from the Gulag. Recall that some of the nuttier wingnuts wanted to seize Justice Souter’s home to punish him for his opinion in the Kelo case. I’d been wondering whether any of the anti-Kelo fanatics would let the eminent domain principle interfere with their support for Keystone.

....It’s perfectly consistent to think that eminent-domain powers can be used to complete projects better left unstarted, and also to think that bad projects ought to be blocked on their merits. It’s not quite so consistent to back property rights except when the big energy companies want to confiscate them.

As it happens, my view at the time — and still today — is that Kelo was properly decided. If Congress or the states want to place restrictions on eminent domain, that's fine, but the Constitution itself doesn't impose any restrictions except "just compensation." So if the government decides that the public needs a new oil pipeline, then it can use eminent domain to get the land as long as it pays for it. And if the government further decides that it prefers to have someone else build the pipeline, it can do that too. I might not always like this, but as near as I can tell that's what the Constitution says.

But most conservatives don't believe this. So here's the question: is it hypocritical for them to support the pipeline anyway? Or is their sole obligation to argue their position in front of the Supreme Court and then, if they lose, work within the court's rules to their best advantage? Generally speaking, I'd say the latter. Just because the government passes a law you don't approve of doesn't mean you can't — or shouldn't — exploit the law to your full advantage. Once it's passed (or handed down), the law is the law for all of us, even those of us who don't like it.